By Marc Campopiano, Lucas I. Quass and Samantha Seikkula
In a published decision, following the Supreme Court’s decision in California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369, the First District Court of Appeal upheld California Environmental Quality Act (CEQA) thresholds of significance adopted by the Bay Area Air Quality Management District (the District) in California Building Industry Association v. Bay Area Air Quality Management Dist. (2016) 2016 Cal. App. LEXIS 683. While the Court upheld limited use of the District’s thresholds, it determined that the thresholds “may not be used for the primary purpose envisioned by District, namely, to routinely assess the effect of existing environmental conditions on future users or occupants of a project.”
Adopted in 2010, the District’s thresholds set “construction-related” and “operational-related” significance levels for TACs and PM2.5 emissions, broken down into four separate categories, including categories for new receptors (Receptor Thresholds). The District also published new “CEQA Air Quality Guidelines” (District Guidelines), which include the thresholds and suggest methods of assessing and mitigating impacts found to be significant. The California Building Industry Association challenged the Receptor Thresholds on the grounds that CEQA does not require an analysis of an existing condition’s impact on a project’s future occupants. The Supreme Court agreed, finding that CEQA does not require an agency to consider a project’s existing conditions on future users and residents of a proposed project. The Supreme Court remanded the case to the Court of Appeal to determine whether the Receptor Thresholds were consistent with its decision.
On remand, the District argued that the Receptor Thresholds may be utilized in five other circumstances during the CEQA process, including: 1) to analyze existing air pollution for an agency’s own proposed project; 2) to determine whether the project could worsen future conditions; 3) to determine the effects of existing hazards on school projects; 4) to determine whether an exemption for certain housing development projects applies; and 5) to determine the project’s consistency with the general plan. However, the District confirmed that the Receptor Thresholds may not be used to require a project proponent to implement mitigation measures or obtain an EIR solely because of the existing environment’s impact on future residents. The Court of Appeal, agreeing with the District in part, held that the thresholds may instead be used under the following four of circumstances:
- A lead agency may voluntarily utilize the Receptor Thresholds for the agency’s own proposed projects, but cannot be used to require third party project proponents to obtain an EIR or implement mitigation measures.
- To determine whether a project would worsen existing conditions and thus affect future users of the project.
- By a school district acting as a lead agency to determine the effects of existing hazards on future users of the proposed project for certain school projects. The Court of Appeal determined that because the Receptor Thresholds enable an agency to measure environmental significance, a school district may use the Receptor Thresholds to assess the health risk to students and employees at a school site, as required by CEQA.
- To evaluate whether the air quality certain urban infill housing developments under Public Resources Code section 21159.21(f)’s exemption provisions pose a health risk to future occupants of the qualifying project.
Ultimately, the Court of Appeal held that because the Receptor Thresholds may be used under certain circumstances consistent with CEQA, they are not “clearly erroneous and unauthorized” and need not be set aside in their entirety. The Court of Appeal remanded the case to the trial court, with instructions to partially grant CBIA’s petition for writ of mandate, and issue an order invalidating those portions of the District Guidelines suggesting that lead agencies should apply the Receptor Thresholds to routinely assess the effect of existing environmental conditions on future users or occupants of a project. The trial court also will determine the limits of the Receptor Thresholds’ use.
The District additionally argued that the Receptor Thresholds may be used to determine whether a particular project is consistent with a general plan. The Court of Appeal noted that a project’s inconsistency with a general plan does not itself mandate a finding the project will have a significant effect on the environment. The Court of Appeal declined to consider this issue because the District did not provide a concrete example of how the Receptor Thresholds may be used by an agency to make a finding that a project is consistent with the general plan.
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